- (1.) - By this petition under Art. 32 of the Constitution, the petitioner challenges the validity of S. 497 of the Penal Code which defines the offence of 'adultery' and prescribes punishment for it. A few facts, interesting but unfortunate, leading to this petition are these : The petitioner filed a petition for divorce against her husband on the ground of desertion. The trial Court dismissed that petition, holding that the petitioner herself had deserted the husband and not the other way about. Thereafter, the husband filed a petition for divorce against the petitioner on two grounds : firstly, that she had deserted him and secondly, that she was living in adultery with a person called Dharma Ebenezer. The petitioner conceded in that petition that in view of. the finding recorded in the earlier proceeding that she had deserted her husband, a decree for divorce may be passed against her on the ground of desertion. So far so good. But, the petitioner contended further that the Court should not adjudicate upon the question of adultery since it was unnecessary to do so. That plea was opposed by the husband. He contended that he was entitled to obtain a decree of divorce against the petitioner not only on the ground of desertion but also on the ground of adultery and that, there was no reason why he should be denied an opportunity to show that the petitioner was living in adultery. The husband's contention was accepted by the trial court but, in a revision application filed by the petitioner, the High Court accepted her plea and held that since, the finding recorded in the earlier petition was binding on the parties, a decree for divorce had to be passed in favour of the husband on the ground of desertion and that, it was unnecessary to inquire into the question of adultery. We are informed at the Bar that, pursuant to the High Court's view, a decree for divorce has already been passed in favour of the husband on the ground that the petitioner had deserted him.
(2.) While his petition for divorce was pending against the petitioner, the husband filed a complaint against Dharma Ebenezer under S. 497 of the Penal Code charging him with having committed adultery with the petitioner. This writ petition has been filed by the petitioner for quashing that complaint on the. ground that the very provision which creates the offence of 'adultery', namely, S. 497 of Penal Code, is unconstitutional.
(3.) Section 497 is one of the six sections in Chapter XX of the Penal Code, which is entitled 'Of Offences Relating to Marriage' Section. 497 reads thus: "Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.";